Law and You > Criminal Laws > Indian Penal Code >Concept Application 1.5 (Ss. 1 to 5)

These are the FAQs asked on territorial jurisdiction of IPC. These are 12/16 Marks questions and answer is expected in about 1000 to 1200 words.

Answer following questions in detail with relevant case laws.

Note: Answer to these questions should be written in about 1000 words

Q1. Discuss Territorial Jurisdiction of the Indian Penal Code.

Sections 2 to 4 talk about the jurisdiction of the Code. Section 2 discusses territorial or intra-territorial jurisdiction, while Section 3 and 4 discuss extra-territorial jurisdiction of the Code. The Indian Penal Code is applicable to the whole of India. Due to the abrogation of article 370 of the Constitution of India and subsequent legislations, it is also applicable to the State of Jammu and Kashmir.

Section 2 of the Indian Penal Code:

Punishment of offences committed within India:
Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.

An offence must be committed by any person. The definition of the word “person” (Section 11) includes a Company or Association or body of persons, whether incorporated or not is an artificial entity created for the purpose of business. Similarly, it includes Indian nationals and foreign nationals. As long as a person is within the territories of the Indian subcontinent, they shall be liable under this Code irrespective of caste, creed, nationality or rank. A foreigner is also liable for punishment under this Code if he commits any act or omission within the territory of India, irrespective of whether the act or omission is an offence in their native country.

The person will be liable only under this Code and not otherwise. This means that intra-territorial jurisdiction under this Code only applies to offences committed under the IPC and does not hold persons liable for offences committed under other Indian laws.

The person should have committed some act or omission as per the provisions of this Code. If the act or omission is not covered under IPC, then the person is not liable under IPC.

The person will be guilty of the offences committed within India. They will only be held accountable in India for their actions or omissions that were committed in India as per the IPC.

The person should not be in the list exempted from liability under Section 2 of the Code like Presidents, Governors, Foreign Sovereigns, Foreign ambassadors, Diplomatic representatives, alien enemies, foreign army, and warships.

The phrase “within India” used Section 2 of the IPC gives intra-territorial jurisdiction of the Code which includes land, rivers, a territorial area in the high sea within 12 nautical miles from the coast of India. By this section, all the offences committed on the Indian Territory and defined by the Code are punishable under the Code.

In Kastya Rama v. State, (1871) 8 BHC, the fishers of village ‘A’ lawfully fixed fishing stakes in the sea within three miles from the shores. The fishers of village B, annoyed with their act, removed all the fishing stakes. On prosecution accused pleaded that their act could not come within the purview of the Indian Penal Code. The Bombay High Court held that the act of fishers of village ‘B’ was within the purview of the Indian Penal Code, and particularly their act would be “mischief” as defined in the Code, and place of the offence was within three miles from the shores and were covered within the territory of India.

In R v. Esop, (1836) 173 E.R. 203 case, where the person charged with violating a published law is a stranger to the jurisdiction (India) and claims in defence that the act in question was not an offence under the law of that person’s home jurisdiction (Baghdad). The Court rejected this defence and convicted him for the offence.

In Mobarik Ali v. The State of Bombay (AIR 1957 SC 857) case, Mobarik Ali, a rice merchant in Karachi, promised to supply 2000 tons of rice and received the maximum amount from a rice merchant in Goa. While staying in Karachi he made false representations through letters, telephone conversations and telegrams to the rice merchant in Goa and did not supply the rice. He fled to England and settled in London. His partners Santran, A. A. Rowji, and S. A. Rowji absconded. The Indian authorities made an application to the Metropolitan Magistrate, Bow Street, London. who ordered the arrest of the appellant. He was brought to Bombay where he was prosecuted for cheating. The Supreme Court observed that the basis of jurisdiction under S. 2 is the locality where the offence is committed and that the corporeal presence of the offender in India is immaterial. The Supreme Court held that the offence was committed by the accused at Bombay even though he was not physically present there.

In Mayer Hans George v. the State of Maharashtra, AIR 1965 SC 722 case the accused was a German national. He was on his way from Zurich to Manila on a Swiss aircraft that arrived in Bombay while in transit. He remained within the aircraft and did not come out. He did not file a declaration under the Foreign Exchange Regulation Act, 1947, regarding the gold he was carrying. During the checking, the customs found the gold on aircraft. The accused was booked under the Foreign Exchange Regulation Act, 1947. The cause of action arose in India. The Supreme Court held that his trial and conviction under the Indian law was valid.  The Court also held that it is not necessary for Indian law to be published outside India so that foreigners can know about them. Thus Ignorance about the Law or any change in it cannot be pleaded.

In Issub Ibrahim, Pary’s Oriental Cases, (1945) 57 case, the Court held that the courts of the state have jurisdiction over its port, harbours, the mouths of its rivers and its land-locked bays.  The right of innocent passage granted to a foreign state and the privileges granted to public ships in port and in part to private ships are concessions, which leave the general principles of sovereignty intact.

Conclusion:

The Indian Penal Code is applicable to the whole of India. Under Section 2 of the Code, the Code is applicable to all persons including foreign nationals who have committed an offence defined in the code in the territory of India. The person will be liable only under this Code and not otherwise. President, Governors of States, Foreign ambassadors, Diplomatic representatives, Warships, Alien enemies, Foreign army are excluded from the jurisdiction of this code.

Q2. Discuss Extra-territorial Jurisdiction of the Indian Penal Code. OR Under what circumstances may an offence outside India be tried as an offence committed in India? OR Can an offence committed outside India be tried in India under Indian Criminal Law (IPC &CrPC)? Explain in the light of case laws.

Sections 2 to 4 talk about the jurisdiction of the Code. Section 2 discusses territorial or intra-territorial jurisdiction, while Section 3 and 4 discuss extra-territorial jurisdiction of the Code. The Indian Penal Code is applicable to the whole of India. Due to the abrogation of article 370 of the Constitution of India and subsequent legislations, it is also applicable to the State of Jammu and Kashmir.

Section 3 of the Code:

Punishment of offences committed beyond, but which by law may be tried within, India:

“Any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India”

In this section, the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Code. Thus the offence in India is also an offence outside India.

A key ingredient of this section is in the phrase “any person liable, by any Indian law”. This section operates only where an Indian Law specifically provides that an act committed outside India may be dealt with under that law in India. For such a thing, there should be a provision similar to S.4 of IPC in that Act. Thus Section 3 of the Indian Penal Code postulates that before any person can be tried in India for an offence committed beyond India, there must be in existence a law making him liable to be so tried. It means an Indian citizen who committed an offence outside India which was not an offence according to the laws of the country in which he stays would still be liable to be tried in India if it was an offence under Indian Laws.

In Sheikh Haidar v. Issa Syed, AIR 1938 Nagpur 235 case, the defendant was charged with taking part in child marriage which is a crime in India but not a crime outside British India. The Court held that the Child Marriages Restraint Act, 1929 does not contain any provision for its extraterritorial application (as S. 4 of IPC) and, therefore, does not apply to marriage outside India.

If an Indian citizen commits adultery in England, which is not a crime there, he is guilty of it on the grounds that he is an Indian citizen and adultery is a crime defined under section 497 of the Code.

The rationale behind the extension of criminal jurisdiction of the courts in India, even if the offence is committed by citizens beyond or outside India, is based on the contention that every sovereign state can regulate the conduct of its citizens, wherever they might be for the time being. Provision of Section 4 Clause 1 is applicable to citizens of India only. It is not applicable to persons who are not the citizen of India at the time of the offence.

The provision of Section 4 Clause 2provides jurisdiction to Indian Courts for offences committed by any person, whether Indian or a foreigner, on any ship or aircraft registered in India wherever it may be. An Indian ship wherever sailing, whether in the high seas or in any other waters and Indian aircraft wherever flying are territories of India and any offence committed on them by any person of whatever nationality is subject to be dealt with in accordance with the provisions of the Indian Penal Code.

Section 4 Clause 3 was inserted by the Information Technology (Amendment) Act, 2008. Section 75 of the Information Technology Act 2000 must be read along with Section 4(3) of the IPC.

Section 75 of the Information Technology Act 2000 lays down that it will apply to any persons who commit any offence or contravention outside the territory of India. It explicitly mentions that it will apply to any person, irrespective of their nationality.

For the purpose of Section 4 Clause 3 of IPC, the expression “computer resource” has the same meaning as is assigned to it by S. 2(1)(k) of the Information Technology Act 2000, namely a computer, computer system, computer network, data, computer database or software.

Under Sections 3 and 4 of the Indian Penal Code and Section 188 of the Criminal Procedure Code, local Courts can take cognizance of offences committed beyond the territories of India. This can be done when any Indian citizen does an act outside of India which is not an offence in that country but is in India. Section 188 of CrPC also provides that when an offence is committed outside India.

In Sarmukh Singh, (1879) 2 All 218 case, a soldier in the Indian Army, committed murder in Cyprus while on service in such army and was charged with the offence at Agra. The Court held that he is triable for the offence by the Criminal Court at Agra.

In Remia v. Sub Inspector of Police, Tanur, 1993 Cri LJ 1098 (Ker)  case a sub-inspector of police refused to register a case of murder on the ground that the offence was committed in Sharjah, UAE, outside his territorial limits. The Kerala High Court after examining Ss. 3 and 4 IPC and S. 188 Cr PC, held that refusal by the sub-inspector was illegal.

In the case of Samaruddin v. Assistant Director of Enforcement, 2009 (1) KLT 943  case, the Court held that Indian courts do not have authority to try any offence committed outside the territory of India without the prior sanction of the Central Government.  

In K.T.M.S. Abdul Kader v. Union of India, 1977 CrLJ 1708 (Mad-FB) case, the Court held that Parliament has the power to pass laws having extra-territorial operation. Such law is not invalid merely because of the incapability of enforcement outside the territories. Such law may be ineffective, so long as the foreigner remains outside India, but he may be dealt with when he is found inside the country.

In Mohamed Sajeed v. the State of Kerala, (1994) 1 KLT 464 case the accused committed an offence in Gulf countries and came back to India. The Division Bench ruled that the police can investigate a crime committed in a foreign country. The prior sanction of the Central Government for purposes of investigation is not necessary.

Conclusion:

Section 3 and Section 4 of the Indian Penal Code confers extraterritorial jurisdiction to the Code. According to Section 3 of the Act, any person who commits an act beyond the territorial limits of the country but the repercussions of such an act is such that it has been committed within the territory of India. Then such a person could be dealt with in accordance with the provisions of the Code for the act committed by him even though in the country in which he committed the act is not an offence under the ordinary laws of that country. Section 4 of the Indian Penal Code expands the ambit of application of Section 3 of the Act.

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